947 N.W.2d 152
Wis. Ct. App.2020Background
- April 2013: Anita Bucki disappeared from marital property; husband Mark Bucki reported her missing. Police observed suspicious signs (cleaner odor in garage, disturbed driveway, truck bed handprints).
- May 2013 searches: two certified cadaver dogs (Izzy, Trixie) alerted at multiple locations on Bucki’s property (truck bed, burn barrel, trailer, area of disturbed earth, inside residence).
- May 10, 2013: Anita’s body found ~12 miles away in Taylor County; death by stab wounds and blunt trauma to neck consistent with strangulation.
- Trailing investigation: two bloodhounds (Pollie, Missy) were given tennis shoes seized from Bucki’s residence and tracked toward the location where Anita’s body was found.
- Procedural history: Bucki was tried and convicted of first-degree intentional homicide, strangulation, and hiding a corpse. Pretrial Daubert-style hearing addressed admissibility of canine-scent testimony under Wis. Stat. §907.02; the court admitted the handlers’ expert testimony. Postconviction Machner hearing denied ineffective-assistance claims that counsel failed to call defense expert, failed to present shoe-contamination evidence, and failed to more forcefully rebut the “shallow grave” theory. Appeal affirmed.
Issues
| Issue | Plaintiff's Argument (State) | Defendant's Argument (Bucki) | Held |
|---|---|---|---|
| Admissibility of canine-scent expert testimony absent physical corroboration | Handlers’ training, methods, peer-reviewed studies and incident reports satisfy §907.02; corroboration not required | Canine alerts are unreliable for proving guilt without physical/forensic corroboration; court must require corroboration under "sufficient facts or data" prong | No categorical corroboration requirement; court properly applied §907.02/Daubert factors and admitted the evidence; weight for jury to decide |
| Exclusion under Wis. Stat. §904.03 (unfair prejudice/misleading jury) | Probative value substantial; Daubert inquiry addressed reliability; risks manageable by cross-exam and jury instructions | Error rates, contamination, cuing and mixed scents make the evidence more prejudicial than probative | Court did not abuse discretion; probative value not substantially outweighed by prejudice; admission proper |
| Ineffective assistance for not calling defense expert Dr. Myers at trial | Counsel made reasonable strategic choice after cross-examining State witnesses; feared rebuttal by State expert; decision was collective and informed | Attorneys unreasonably failed to call Myers to expose unreliability of canine evidence | No deficient performance; decision was reasonable strategy and not prejudicial |
| Ineffective assistance for failing to present shoe-contamination evidence and to better challenge the disturbed-earth "shallow grave" theory | Counsel elicited contamination possibilities on cross-exam, obtained limine relief on "shallow grave" label, and pursued reasonable strategic choices | Counsel failed to develop/introduce evidence (son’s statement, photos) that shoes were contaminated and that disturbed-earth tracks were from law enforcement | Court found counsel credible; no deficient performance or prejudice shown; postconviction claims denied |
Key Cases Cited
- Daubert v. Merrell Dow Pharm., 509 U.S. 579 (1993) (federal gatekeeping factors for expert admissibility)
- Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999) (Daubert gatekeeping applies to non-scientific expert testimony; courts have broad latitude)
- State v. Jones, 381 Wis. 2d 284, 911 N.W.2d 97 (2018) (Wisconsin adoption/implementation of Daubert framework in §907.02)
- State v. Giese, 356 Wis. 2d 796, 854 N.W.2d 687 (2014) (Daubert standard has "teeth"; focus on methodology over conclusions)
- Brooks v. People, 975 P.2d 1105 (Colo. 1999) (discussed corroboration requirement adopted by some courts for canine-tracking evidence)
- People v. Gonzales, 267 Cal. Rptr. 138 (Ct. App. 1990) (canine-tracking cases where convictions based solely on dog evidence prompted courts to require corroboration)